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April 20, 2013

"Effective Plea Bargaining Counsel"

The title of this post is the title of this new piece by Jenny Roberts now available via SSRN. Here is the abstract:

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court -- recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials -- ruled in favor of Frye and Cooper.

If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.

In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged -- as other ineffective assistance claims are judged -- by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.

The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?

"The Pot Business Suffers Growing Pains"

Across the country, the business of growing pot is fast becoming mainstream. Eighteen states and the District of Columbia have approved the use and production of marijuana for medicinal use, including two states, Colorado and Washington, that also allow recreational use. That has spurred on a cottage industry of professional growers, with an estimated 2,000 to 4,000 businesses now producing the plant for legal purposes. Total sales: $1.2 billion to $1.3 billion last year, according to the National Cannabis Industry Association.

But it turns out that trying to make a profit in this business is harder than expected. When grown and sold legally, marijuana can be an expensive proposition, with high startup costs, a host of operational headaches and state regulations that a beet farmer could never imagine. In Colorado, for example, managers must submit to background checks that include revealing tattoos. The state also requires cameras in every room that has plants....

Prices for pot, meanwhile, have plummeted, in large part because of growing competition. And bank financing is out of the question: Federal law doesn't allow these businesses, and agents sometimes raid growers even in states where it is legal.

Still, a hearty group of weed producers are coming out of the woodwork — or their basements, where they used to grow pot — to have a go at it. That includes outfits in Colorado, which hosts the first-ever High Times U.S. Cannabis Cup this weekend. The state passed a new law that next January will allow anyone 21 and older to buy marijuana from retailers, which is expected to dramatically open up a market currently limited to some 110,000 patients with prescriptions. Indeed, the industry publication Medical Marijuana Business Daily forecasts a tripling in annual sales in the state in 2014 to at least $700 million....

A major drag on earnings for marijuana growers is the labor-intensive nature of the business. Payroll can make up more than a third of production costs, says Jason Katz, chief operating officer of Local Product of Colorado. Managing workers is challenging too, he adds, in an industry where many learned their trade by growing clandestinely. His company went through six growers in three years before one worked out. "They aren't used to being part of regular society," he says.

Costs and management issues aside, the biggest shock to most marijuana growers has been pot prices. As the industry becomes more competitive and there is more pot available, the price for a pound of high-quality weed in Denver has slid from $2,900 at the beginning of April in 2011 to $2,400 in the same period in 2012 to $2,000 this year, according to Roberto's MMJ List, a service that connects wholesale sellers and buyers. At the height of summer demand in 2011, a pound sold for as much as $3,900.

To be sure, some experts say it is possible to do well. Roberto Lopesino Seidita, who runs the price list and consults for the industry, says some growers are pulling in double-digit margins by focusing on price, not just quality. They have developed ways to produce large amounts of pot cheaply, and offer it at unbeatable prices, driving hundreds of customers through the door every day. "It's run like Wal-Mart," he says.

Illegal growers, of course, have been producing and marketing large quantities of marijuana — often at a sizable profit — for decades. Most of the pot consumed in the U.S. is grown outdoors in Mexico by low-wage laborers, with no need for lights or air conditioning, says Jonathan Caulkins, a professor at Carnegie Mellon University who studies marijuana legalization. And street prices for pot in places where there is no legal outlet for it are generally higher than in regulated markets, Mr. Caulkins says....

As with many plants, spider mites and mildew can wipe out a marijuana crop. A single mistake in planting can also doom a harvest, or lower its quality and value....

Though rarely in Colorado, federal agents still raid growers regardless of state laws when the businesses are too close to schools or lax in other ways. Last December, President Barack Obama said his administration had "bigger fish to fry" than going after recreational users. A spokeswoman for the U.S. Department of Justice said the agency is reviewing the new laws in Colorado and Washington state.

There are other legal headaches. After a marijuana strain called Bio-Diesel won a quality competition in 2009, the name started appearing in dispensaries around Denver, says Ean Seeb, owner of Denver Relief, the outfit that produced the prized variety. Prices are below his, but Mr. Seeb has no way of legally challenging his competitors; the U.S. Patent and Trademark Office won't register cannabis-related products, he says.

April 19, 2013

This CNN headline gets to the heart of the most notable news after a remarkable manhunt: "'CAPTURED!!!' Boston police announce Marathon bombing suspect in custody." Here are the basic details as of late Friday night:

The suspect in the Boston Marathon bombings was taken into custody Friday night, bringing to an end a massive manhunt in the Massachusetts capital amid warnings the man was possibly armed with explosives.

Law enforcement officials told CNN that authorities have confirmed the man in custody is 19-year-old Dzhokar Tsarnaev, who escaped an overnight shootout with police that left his older brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. The younger Tsarnaev was in need of undisclosed medical care, the officials said.

After announcing the arrest on Twitter, Boston police tweeted: "CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won. Suspect in custody."...

Tsarnaev was cornered late Friday on a boat in a backyard of Watertown, a suburb of Boston.
Authorities "engaged" the man, according to one of the officials who spoke on condition of anonymity, just minutes after authorities indicated during a news conference that a manhunt for the suspect appeared to come up empty....

The development came after authorities cast a wide net for the suspect that virtually shut down Boston and its surroundings following a violent night in which authorities say the brothers allegedly hurled explosives at pursuers, after killing Massachusetts Institute of Technology police Officer Sean Collier and hijacking a car....

A federal official told CNN that Dzhokar Tsarnaev came to the U.S. as a tourist with his family in the early 2000s and later asked for asylum. He became a naturalized U.S. citizen in 2012. Tamerlan Tsarnaev was not a naturalized citizen, said the official, who spoke on condition of anonymity. He came "a few years later" and was lawfully in the United States as a green-card holder.

In a brief press conference following the capture of Dzhokar Tsarnaev, the local US Attorney, Carmen Ortiz, was asked about whether she would seek the death penalty; she effectively dodged the question for now. I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings. That said, as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea.

Among other significant legal issues now in play now is how the federal Crime Victim Rights Act might impact the prosecution of Dzhokar Tsarnaev. Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case." But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev. Of course, it will be entirely impractical for everyone terrorized (and thus arguably victimized) by the Boston bombings and its aftermath to invoke formal rights under the federal Crime Victim Rights Act. Still, how federal prosecutors will seek to comply with the CVRA in this case will be interesting to watch.

Another poll reveals majority support for marijuana legalization

As reported in this new Huffington Post piece, headlined "Marijuana Poll Finds Majority Support Legalization," another recent poll indicated that (barely) a majority of the public opinion now favors legalization and taxing of marijuana. Here are the basic details:

A clear majority of Americans say that marijuana should be made legal
if it will be taxed and regulated like alcohol, even though few say
they use marijuana themselves, according to a new HuffPost/YouGov poll.

According to the new survey, 51 percent of Americans say that
marijuana should be "legalized, taxed, and regulated like alcohol." A
much smaller percentage (6 percent) say that the drug should be
legalized, but not taxed and regulated. Only 33 percent of respondents
said marijuana should not be legalized at all, and 10 percent said they
weren't sure.

The percentage of Americans in the new survey saying that they want
to legalize marijuana is somewhat higher than on most other polls,
perhaps because the question specified that marijuana could be legalized
and "taxed and regulated like alcohol," while most other surveys ask if
marijuana should be legal or illegal without qualifiers. But a recent Pew Research Center survey also found that a majority of Americans support legal marijuana.

In the new Huffpost/YouGov poll, a combined 70 percent of Democrats
and 59 percent of independents, but only 37 percent of Republicans, said that they thought marijuana should be legalized either with or without taxes and regulations.

But most respondents to the survey, regardless of political party,
said they think marijuana will eventually be legal throughout the U.S.,
although they disagreed on when that may happen. Thirty-seven percent of
respondents said that marijuana will be legal nationally within the
next 10 years, while another 37 percent said that it will be legal
eventually, but not that soon. Only 11 percent said that marijuana will
never be legal. Those who said that it will be legal either within the
next 10 years or eventually include 80 percent of Democrats, 72 percent
of independents, and 69 percent of Republicans.

"How can a member of the US Sentencing Commission promote federalism?"

The question in the title of this post is one astute query by a commentor in response to my recent post here highlighting that Eleventh Circuit Judge William Pryor, whom President Obama nominated to the US Sentencing Commission earlier this week, has written about the need for the federal criminal justice system to be more attentive to federalism concerns. There are lots of possible answer to this question, but the following passage from the article in the Ohio State Journal of Criminal Law, Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011), provides an answer in Judge Pryor's own words:

One answer to the current challenges to sentencing reform is to add federalism
to our national conversation. A comprehensive report on sentencing by the U.S.
Sentencing Commission, as the Department of Justice suggests, is a good idea, but
one of the subjects of the report should be the balance of federal and state power.
The Commission should consider and evaluate to what extent the problems of
disparities, complexity, and unpopularity of the post-Booker
guidelines are related
to the federalization of crime. The Commission should evaluate to what extent
federal prosecutions of certain types occur more frequently in states with failed
indeterminate systems and less frequently in
states with successful guideline
systems.
It
should ask to what extent federal judges disrespect guidelines where the
underlying crimes are more local in nature and differences of opinion about
punishment vary more by region.
It
should consider whether
sentencing disparities
occur
under the advisory guidelines either on a regional basis from one district to
another or within districts from one judge to another, and should consider what those
disparities mean with respect to federalism. The Commission is
in a better position
than most institutions to ask what federal sentencing policies and practices tell us
about the balance of federal and state powers.

Disappointingly, the US Sentencing Commission's recently released reports about post-Booker sentencing practices and about federal child porn sentencing, despite being massive and dense with data about all sorts of federal sentencing realities, included no focused exploration of the relationship between federal sentencing practices and state and local sentencing developments. Perhaps if (and I hope when) Judge Pryor is confirmed to join the USSC, he can and will champion an effort to produce follow-up reports focused specifically on these kinds of federalism concerns.

April 18, 2013

Can the new media help identify the two persons the FBI are seeking in the Boston bombings?

The question in the title of this post is prompted by my desire to help the FBI identify and question the two persons appearing in these pictures now posted on the FBI's website. This Washington Post article provides background on this latest crime investigation development, as well as the modern challenges posed by modern media:

The FBI on Thursday released photographs of two men said to be suspects in the Boston Marathon bombings that killed three spectators and injured more than 170 other people.

Richard DesLauriers, special agent in charge of the FBI office in Boston, appealed to the public for help in identifying the two men, whom he cautioned should be considered “armed and extremely dangerous.”

Appearing at a news briefing with U.S. Attorney Carmen Ortiz, DesLauriers said the two men, both carrying what appeared to be heavy bags on their backs, walked together through the crowd of spectators. He said the man identified as Suspect No. 2, wearing a white cap, was seen leaving his bag at the site of the second explosion Monday.

“We initially developed a single person of interest,” not knowing whether the man was acting alone or with others, DesLauriers said. The FBI later determined that there was a second suspect, he said.

“Today we are enlisting the public’s help to identify the two suspects,” he said. Photos of the men were displayed on easels set up in the briefing room, and DesLauriers said the images would also be published on the FBI’s Web site.

“Somebody out there” knows who the men are, DesLauriers said, adding: “We consider them to be armed and extremely dangerous.” He warned the public: “No one should approach them.... Do not take any action on your own.” He urged people instead to contact law enforcement....

With the investigation proceeding, President Obama, first lady Michelle Obama and members of the Massachusetts congressional delegation flew to Boston to attend an interfaith prayer service, console victims of the bombings and their relatives and thank medical personnel and first responders....

Wednesday’s whirlpool of reports demonstrated the extraordinary promise and power that new technologies bring to criminal investigations, but also the risk and unreasonable expectations that now permeate such probes. When federal authorities asked the public for help Monday, they received thousands of video clips and still images of the bomb site.

Some people, empowered by smartphones and ever more sophisticated technology, didn’t leave the detective work to the professionals. They joined forces on sites such as Reddit.com to examine crowd pictures, searching for — and then virally distributing — image of backpacks that resembled the shredded bag in photos the FBI released Tuesday.

Black backpacks turn out to be ubiquitous, and when five of them were found in a single photo of the crowd on Boylston Street, the search quickly drew criticism from readers worried that innocent people could be harmed by being identified as suspicious. Others questioned whether black backpacks were even the most important lead, recalling the search for white box trucks that steered investigators astray in the D.C. sniper case a decade ago.

UPDATE: As of 10am on Friday morning, April 19, 2013, here is the latest news via this NBC News update, which is right now headlined "Boston on lockdown during marathon manhunt for white-hat suspect":

Boston and its surburbs, universities and transit system were on total lockdown Friday as police hunted for marathon bombing suspect Dzhokhar Tsarnaev -- on the loose after his accomplice brother was killed in a stunning chain of events that left one cop dead and another injured, officials said.

Authorities were confronting a double-edged nightmare: a ruthless killer at large in a densely populated area and a four-mile stretch of road possibly littered with explosive devices tossed from the suspects' getaway vehicle during a wild chase and firefights.

A possible associate of the brothers was also being sought.

Two unidentified people were taken into custody at the Cambridge, Mass., home where Dzhokhar Tsarnaev and his older brother Tamerlan grew up, but they were not being described as additional suspects. Three dozen FBI agents were surrounding the house....

"There is a massive manhunt under way," Massachusetts Gov. Deval Patrick said. "We are asking people to shelter in place."
The lockdown initially affected more than 300,000 people in Cambridge, Watertown, Newton, Brighton, Allston and Belmont, but by 8 a.m., the entire city of Boston was paralyzed, officials said.

Watertown, where the second suspect was last seen, was the epicenter of the search. Frightened residents were trapped in their homes as convoys of heavily armed officers and troops arrived by the hour.

Harvard University, Boston University, the Massachusetts Institute of Technology and Emerson University were all closed and students were told to stay inside. Boston public schools were shuttered for the day.

The overnight violence began near MIT about five hours after the FBI released surveillance photos of the two men suspected of planting two bombs near the finish line of Monday's Boston Marathon, killing three and wounding 176.

Tips about the identity of the suspects were still pouring in when the Tsarnaev brothers robbed a 7-Eleven then fatally shot an MIT police officer in his vehicle at 10:20 p.m., law enforcement officials said.

The brothers -- of Chechen origin, but legal permanent residents of the U.S. who moved here a decade ago -- then carjacked a Mercedes SUV, briefly holding the driver captive before letting him go and taking off, sources said.
During a chase between Cambridge and Watertown, the suspects threw explosives out the window, sources said.

"Race and the Disappointing Right to Counsel"

The title of this post is the title of this notable new article by Gabriel (Jack) Chin now available via SSRN. Here is the abstract:

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright has been unfulfilled. They decry both the inadequate quality of representation available to indigent defendants, and the racially disproportionate outcome of the process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This essay is doubtful that better lawyers will significantly address that problem.

When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas.

The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly; the Court attempted to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch; three years after Gideon, the Court allowed prosecutors to exercise peremptory challenges of jurors based on race. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement and in sentencing practices are essentially unchallengeable.

Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly, with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination, and having fewer crimes on the books, fewer arrests, and fewer prosecutions.

I am very pleased to see Jack Chin's willingness to note not only that Gideon may not have solved the problem of a racialized criminal justice system, but even that Gideon "may have exacerbated it." In many ways, Jack's piece here is another articulation of this recent provocative New York Times op-ed by Paul Butler last month, headlined "Gideon’s Muted Trumpet," which highlighted various ways in which the modern criminal justice evolved for the worse during half century after Gideon became the law of the land. And I echoed another variation on these ideas when I asked in this post, "Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?."

I do not surmised that Jack or Paul are saying, and I know that I am not saying, that Gideon was wrongly decided or that our current criminal justice system would be better without Gideon. But I do think we are all eager to encourage reflection on the reality that there may be a lot more wrong with our modern criminal justice systems than poor funding and poor functioning of some defense lawyers.

"What if NY invested more in dairy farms and less in prisons?"

The question in the title of this post is the headline on this story from a public radio station in upstate New York, which is part of "a series on current issues and the future of dairy in the North Country." (In addition to liking the milky pictures that go with this story, I like having new proof that even the price of ice cream and cow-tipping have a link to sentencing law and policy.) Here is how the text with the piece starts:

There are more than a dozen state and Federal prisons in the [North Country] region, along with eleven county jails. That makes corrections work one of our top employers.

One activist group based in Brooklyn thinks these two issues -- prison jobs and the dairy industry -- should be linked in people's minds, as we think about ways to grow the rural economy. That group's called "Milk Not Jails."...

This whole project, Milk Not Jails, is the brainchild of Lauren Melodia, who lives in Brooklyn and has spent the better part of a decade trying to connect upstate and downstate communities around the question of how their economies interact.
She says she was working in an urban neighborhood trying to raise awareness about food issues, and prisons just kept coming up.

"The community that I was trying to bring fresh food into had very little access to fresh produce," Melodia says.
"And oftentimes we would take bus trips up to the farm where we received our produce from. And a lot of the people on the bus would say that they'd never been upstate except to visit someone in prison."

Melodia also spent a year in Ogdensburg and Canton, trying to make connections in the North Country that would begin to open a new conversation about how prisons shape lives.
"I was in Ogdensburg at the same time that Governor David Paterson was considering closing Ogdensburg Correctional Facility. And people refer to the Ogdensburg and Riverview correctional facilities as the last factories in town. That's absolutely real for people."

Lauren Melodia ... thinks New York state should invest more money in dairy farms and agriculture -- and less money locking up prison inmates, especially low-level and non-violent offenders. "There's all this spin-off economic activity that goes hand-in-hand with agriculture. You have processing, you have distribution, you have tourism. We can't say the same thing for prisons. They don't have that kind of economic growth opportunity."...

"The guards' union and the politicans who represent them oppose major reforms that could make the system work better and prevent people from going to prison in the first place. Why? They're worried that it could create job loss in their community."
That message is a tough sell in communities, like Ogendsburg, that rely on corrections jobs.

Melodia says Milk Not Jails met yesterday in Albany with the staff of North Country Senator Patty Ritchie. Melodia says lawmakers are open to the discussion of boosting dairy and agriculture. But talk of closing more prisons? That doesn't go over so well.

"I understand that the crisis at this point is that these are the last factories in town and we can't get rid of them," she says.
"What we're trying to do is build some kind of long-term planning in the communities where these prisons are housed so there's not that dependency."

Obama Administration still talking up, but still not heavily investing in, drug courts

A corollary to the classic wisdom "follow the money" is the admonition "put your money where you mouth is." These phrase came to mind for me as I read the text of this speech by Acting Assistant AG Mary Lou Leary given today at the National African American Drug Policy Coalition National Spring 2013 Summit. These passages from the speech, in particular, reinforced my concern that the Obama Administration is still doing a great job of talking the talk, but still is not really walking the walk, in its support of drug courts:

[W]hen it comes to drugs, we know that the only way the justice system is going to realize its full potential as a problem solver is by using its authority to encourage and support treatment. And there’s no better illustration of how this can work than the drug court.

Drug courts use the authority of the judicial system to bring together criminal and juvenile justice agencies and social service and treatment providers to deal with the underlying causes of addiction in drug-involved offenders. In other words, it’s court-sanctioned and court-supported treatment. There are more than 2,600 drug courts in operation across the country, and our research shows that they’re effective in reducing recidivism, decreasing future drug use, and saving money.

Our challenge is to expand the drug court approach. Right now, they serve some 120,000 people, but that’s only a fraction of the 1.2 million non-violent drug offenders now in the system. At the Office of Justice Programs, we’re continuing a proud tradition of supporting drug courts, going back to my early days at the agency under Attorney General Janet Reno, who started the first drug court program in Miami. Continuing her legacy, last year our Bureau of Justice Assistance awarded 60 grants totaling almost $18 million to fund drug courts.

We’re also supporting the development and expansion of juvenile and family drug courts. Young drug-involved offenders can really benefit from the treatment, support, and accountability that drug courts provide, and families where children live with substance abusing parents can begin the process of stabilization through the drug court model.

I am pleased to hear continued promotion of drug courts by the Obama Administration because of the research that "shows that they're effective in reducing recidivism, decreasing future drug use, and saving money." But I am not pleased to here that the President's budget to Congress only requests $44 million to continue supporting drug courts and other problem-solving courts. The President's FY2014 budget calls for about $3.8 trillion, so a request of $44 million for drug courts amounts to, roughly, around 0.0001% of the total budget.

I know I should not look a drug court budget gift horse in the mouth especially in these lean budget times. But I still cannot help but wish this gift horse was larger given that research shows that drug courts are "effective in reducing recidivism, decreasing future drug use, and saving money."

To date, more than a dozen states have participated in the Justice Reinvestment Initiative and worked with the Vera Institute of Justice, the Council of State Governments, or The Pew Charitable Trusts to analyze their state-specific data, identify the drivers of their corrections populations, and develop policies that aim to reduce spending and generate savings. Once the policies are passed into law, these jurisdictions continue to receive technical assistance to help with implementation and ensure that the changes and investments achieve their projected outcomes.

What this means in practice is described in Vera’s new report, Justice Reinvestment in Action: The Delaware Model. In 2012, after a year of analysis and consensus-building, Delaware Governor Jack Markell signed SB 226, introducing a sea change to the way the state justice agencies conduct business. At every step in the process — pretrial, sentencing, prison, and supervision — SB 226 requires enhanced decision making based not only on professional judgment but also data analysis and empirically based risk and needs assessment instruments. If implemented correctly, up to $27.3 million could be available for reinvestment over the next five years.

Continued and increased support for the Justice Reinvestment Initiative — in the form of technical assistance and seed funding — is critical to making these methods available to additional jurisdictions and ensuring that the states realize their projected savings and enhance public safety. The future of the Justice Reinvestment Initiative looks bright, with President Obama including $85 million for this effort in his proposed 2014 budget, an increase of $79 million over last year's appropriation.

Implementing evidence-based practices and enabling justice agencies to integrate data analysis into their operations in an ongoing and sustainable way is hard work that takes time, patience, up-front investment, and strong leadership. The Justice Reinvestment Initiative builds and develops the leadership and contributes to the initial investment. Delaware is just one of a dozen success stories. The hard work continues.

The title if this post is the title of this paper by Patrice Fulcher recently posted on SSRN. Here is the abstract:

The Prison Industrial Complex (“PIC”) is a profiteering system fueled by the economic interests of private corporations, federal and state correctional institutions, and politicians. The PIC grew from ground fertilized by an increase in the U.S. prison population united with an economically depressed market, stretched budgets, and the ineffective allocation of government resources. The role of the federal, state, and local governments in the PIC has been to allocate resources. This is the first of a series of articles exploring issues surrounding the PIC, including (1) prison privatization, (2) outsourcing the labor of prisoners for profit, and (3) constitutional misinterpretations.

The U.S. prison population increased in the 1980s, in part, because of harsh drug and sentencing laws and the racial profiling of Blacks. When faced with the problem of managing additional inmates, U.S. correctional institutions looked to the promise of private prison companies to house and control inmates at reduced costs. The result was the privatization of prisons, private companies handling the management of federal and state inmates.

This Article addresses how the privatization of prisons helped to grow the PIC and the two ways in which governments’ expenditure of funds to private prison companies amount to an inefficient allocation of resources: (1) it creates an incentive to increase the prison population, which led to a monopoly and manipulation of the market by Correction Corporation of America (“CCA”) and The GEO Group, Inc. (“GEO”), the top two private prison companies, and (2) it supports the use of Blacks as property, which in turn prevents Blacks from participating in future economic activities because they are labeled as felons.

This Article first discusses how the increased prison population led to the allocation of government resources to prison privatization. Second, it establishes how funding private prison companies helped to develop the PIC into an economic, for-profit “hustle” for the involved partners and stakeholders, herein after referred to as players. Third, it makes it easy to see the “flow” of inequities stemming from the “hustle” and how they are the result of inefficient allocation of government resources. Finally, in order to stop the “hustle” and change the “flow” of inequities, this Article calls for a moratorium on the privatization of U.S. prisons, the end of private prison companies, and a change in drug sentencing laws in order to reduce the prison population.

Notably, the comments to my prior post already include a variety of (not-always-informed) perspectives on these nominations. As I suggested in my prior post, I am a big fan of these nominees, in part because of their diverse backgrounds and professional history and in part because I have interacted with them all personally and been consistently impressed by their insights.

Some comments to the prior post direct particular criticism directed toward Judge Pryor, perhaps because he was a controversial figure when appointed to the bench by President Bush. I submit that, in this context, any assessment of Judge Pryor would be premature unless and until one has read Judge Pryor's own recent account of his history with sentencing and his perspective on the federal sentencing system. That account appeared in the Spring 2011 issue of my own Ohio State Journal of Criminal Law as William H. Pryor Jr., Federalism and Sentencing Reform in the Post-Blakely/Booker Era, 8 Ohio St. J. Crim. L. 515 (2011).

I recommend that all sentencing fans read the entire OSJCL article by Judge Pryor. These passages from the article's introduction should help explain the question in the title of this post (and perhaps also help account for why I hope all new nominees to the USSC get confirmed and get started ASAP):

During my tenure as a state attorney general from 1997 to 2004, I considered myself a sentencing reformer. My office drafted and successfully lobbied for the legislation that created the Alabama Sentencing Commission. Before my term as attorney general ended, the Commission began its long-term campaign to dismantle a regime of explosive growth in the prison population, disparities and dishonesty produced by indeterminate sentencing, and a system of corrections that offered few alternatives to incarceration as a form of punishment. Our hope was to create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.

My contributions to sentencing reform in Alabama ended in February 2004, when President George W. Bush appointed me first to serve temporarily as a circuit judge on the United States Court of Appeals for the Eleventh Circuit and later to a term of good behavior, which was confirmed by the Senate in 2005. In the meantime, the theater of sentencing changed dramatically — both for the states and the federal government — when the Supreme Court decided Blakely v. Washington in 2004 and United States v. Booker in 2005. I have had a front row seat as this play unfolded.

Although I consider myself a generalist in the performance of my public service, my experiences over the last dozen years have given me a comparative perspective of sentencing guidelines and scholarship. Over the last several years, I have participated in the adjudication of hundreds of federal appeals of criminal convictions and sentences and the collateral review of hundreds of state convictions and sentences. I have followed the successful, but often ignored, efforts of state sentencing commissions and reform movements and served as part of the members' consultative group of the revision of the sentencing provisions of the Model Penal Code. I also have read scholarship about and discussed with colleagues the widespread dissatisfaction with the federal sentencing guidelines....

I also have a perspective of federalism, shaped by my experience as a state attorney general, federal judicial servant, and teacher of federal jurisdiction, that a structural problem underlies the current challenges to federal and state sentencing reform. This structural problem involves the federalization of crime. In the spirit of making a modest contribution to the vision of the great reformer, Judge Frankel, I submit that sentencing commissions and lawmakers should consider this structural problem and together find creative solutions to the current challenges for sentencing reform.

My hope for sentencing reform is rooted in a respect for federalism, a venerable feature of the American constitutional order. Restoring some respect for federalism in criminal law might help bridge the political divide between the left and the right, the judicial divide between formalists and pragmatists, and the sentencing divide between individual sentencing and consistency in sentencing. To restore respect for federalism, we must reverse the federalization of crime.

As I have hinted in prior posts, I think it could become a very big deal if (and when?) a majority of US states have formally legalized medical marijuana — especially if (and when?) a number of jurisdictions have also legalized recreational marijuana use and the majority of Americans become accustomed to seeing legitimate "pot shops" in their communities. Consequently, these new stories today strike me as especially notable and significant:

From Illinois here, "Illinois House Approves Use of Medical Marijuana"

If it is only a matter of time before there are state-legalized marijuana sales in Chicago, Manhattan and our Nation's capitol, then I think it will only really be a matter of a little more time before marijuana is legal (or at least decriminalized) in the entire country.

In divided ruling, SCOTUS embraces (fuzzy?) standard rather than per se rules for DUIs and blood tests

The Supreme Court this morning handed down a notable, and notably divided, Fourth Amendment ruling in Missouri v. McNeely, No. 11-1425 (S. Ct. April 17, 2013) (available here). This accounting of the votes and opinions highlights why it likely will not be easy to figure out right away just what McNeely really means:

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and II, in which SCALIA, GINSBURG,and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

I will leave it to Fourth Amendment gurus to tell me whether there is as much of interest in the substance of McNeely as there is in the voting blocks. And speaking of substance, here is how the main opinion of Justice Sotomayor gets started:

In
Schmerber
v.
California, 384 U. S. 757 (1966), this
Court upheld a warrantless blood test of an individual
arrested for driving under the influence of alcohol because
the officer “might reasonably have believed that he was
confronted with an emergency, in which the delay neces­sary to obtain a warrant, under the circumstances, threat­
ened the destruction of evidence.”
Id.,
at 770 (internal
quotation marks omitted). The question presented here
is whether the natural metabolization of alcohol in the
bloodstream presents a
per se
exigency that justifies an
exception to the Fourth Amendment’s warrant require­ment for nonconsensual blood testing in all drunk-driving
cases. We conclude that it does not, and we hold, con­sistent with general Fourth Amendment principles, that
exigency in this context must be determined case by case
based on the totality of the circumstances.

In the context of the Fourth Amendment (and many other criminal procedure contexts), I typically see the embrace of multi-factor standards rather than bright-line rules to be better for defendants (and especially their lawyers) than for police and prosecutors. In turn, the voting blocks here in McNeely reinforce my sense (1) that Justices Ginsburg, Kagan and Sotomayor are very often going to vote together in criminal procedure cases, and (2) that, at least in pre-trial procedure settings, Justice Scalia may often be a more consistent pro-defendant vote than either Justice Breyer or Justice Kennedy.

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

The title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in
the U.S." The full 36-page report is available at this link, and this webpage provides an overview of the contents. Here are some of the basics:

Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.

The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.

The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.

As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.

As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.

Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing

This new Chicago Tribune article, headlined "For sentencing, Jacksons get new judge named Jackson," reports on some notable pre-sentencing developments in the run up to a high-profile federal sentencing scheduled for later this year. Here are the basics:

The felony cases of former Rep. Jesse Jackson Jr. and his wife, former Chicago Ald. Sandi Jackson, have been assigned to a new judge — named Jackson.

Court papers filed Tuesday moved the cases to U.S. District Judge Amy Berman Jackson, but did not explain why the judge who accepted the Jacksons' guilty pleas, Robert Wilkins, would not be the one to sentence them this summer.

Harvard law professor Charles Ogletree Jr., who recently joined Jesse Jackson Jr.'s legal team, told the Tribune that Wilkins is a former law student whom he knows well, and that Wilkins may have recused himself out of caution.

Ogletree said he joined Jackson Jr.'s team on a pro bono basis and will appear at his sentencing June 28. He said he was not involved in the defense of Sandi Jackson, who will be sentenced July 1.

Under sentencing guidelines, the former congressman faces 46 to 57 months in prison and Sandi Jackson one to two years.
The pair pleaded guilty in separate cases in the U.S. District Court for the District of Columbia after Jackson Jr. looted his campaign treasury of more than $750,000 and Sandi Jackson failed to report on joint tax returns about $600,000 in income.

Ogletree, when asked what would be a fair sentence for Jackson Jr., would not say whether that involved prison time but argued that he deserved a "second chance."
He said he thought any judge will look not only at the guidelines but at Jackson Jr.'s record of public and community service and work with seniors and young people.

Ogletree, a longtime acquaintance of the Rev. Jesse Jackson Sr., the civil rights leader, said the case was not about the father but about his son, who is "a young man in a very challenging situation who has a story that I hope people will be willing to listen to."

Judge Amy Berman Jackson was chosen for the Jacksons' case based on a random reassignment. She is not related to the couple — but she is a Harvard law alum like Wilkins and Ogletree.

Judge Jackson has familiarity with a convicted congressman: As a defense attorney before her appointment to the bench, she represented Rep. William Jefferson, D-La., who was convicted of corruption after authorities found $90,000 in cash in his freezer.

April 16, 2013

"Conservatives Push Marijuana Reform in Congress"

There's a new congressional push to end the federal War on Pot in the states – and it's being spearheaded by some of the most conservative members of the Republican conference.

The "Respect State Marijuana Laws Act" introduced in the House last week would immunize anyone acting legally under state marijuana laws from federal prosecution under the Controlled Substances Act. Depending on the state, the legislation would cover both medical marijuana and recreational pot, and would protect not only the users of state-legal cannabis, but also the businesses that cultivate, process, distribute and sell marijuana in these states....

The three GOP co-sponsors are:

Rep. Dana Rohrabacher of California, who is best known to liberals as a villainous climate denier for theorizing that global warming is the result of "dinosaur flatulence."

Rep. Don Young of Alaska, the mastermind of the infamous Bridge to Nowhere, who was most recently in the news for recalling the "wetbacks" his father employed on the family farm.

And Rep. Justin Amash of Michigan, who was recently "purged" from the Republican House Budget Committee – allegedly for being too conservative – and who has repeatedly voted against toughening penalties for human trafficking.

These hardcore Republicans are joined in a ganja Gang of Six by liberal pro-pot stalwarts Reps. Jared Polis of Colorado, Earl Blumenauer of Oregon and Steve Cohen of Tennessee.

Speaking for the group, Republican Rep. Rohrabacher said the bipartisan bill "establishes federal government respect for all states' marijuana laws" by "keeping the federal government out of the business of criminalizing marijuana activities in states that don't want it to be criminal."

Steve Fox, national political director of the Marijuana Policy Project, hailed the effort to bend federal marijuana law to the will of the governed. "Marijuana prohibition is on its last legs because most Americans no longer support it," said Fox, adding that the new legislation offers the states'-rights crowd in the House with a chance to vote their principles: "This legislation presents a perfect opportunity for members to embrace the notion that states should be able to devise systems for regulating marijuana without their citizens having to worry about breaking federal law."

Prez Obama makes three great new nominations to the US Sentencing Commission

I am very pleased and excited to have learned that late yesterday the White House officially announced three great new nomination to fill the three now-empty spots on the US Sentencing Commission. A colleague forwarded me a copy of the official press releases with the appointments, but I cannot yet find it linked on-line. Ergo, I will rely on this local press report from the Montgomery Advertiser, headlined "Obama nominates Bill Pryor for sentencing commission," for the basics:

President Barack Obama nominated former Alabama attorney general and current U.S. circuit judge Bill Pryor to be a commissioner on the U.S. Sentencing Commission, the White House announced Monday evening.

Pryor, who served as attorney general from 1997 to 2004, serves on the U.S. Court of Appeals for the 11th Circuit. President George W. Bush appointed Pryor to the federal bench in 2004....

Pryor would serve a term that expires Oct. 31, 2017, and would replace commissioner William B. Carr, whose term has expired.

Obama also intends to nominate Rachel Elise Barkow, the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, and U.S. District Judge Charles Breyer of the Northern District of California to the sentencing commission, according to the White House.

I am familiar with and greatly respect the sentencing work of all three of these folks, and I cannot readily think of many persons whom I would be more excited to see joining the U.S. Sentencing Commission. I hope they are all swiftly confirmed and can get right to work on all the area of federal sentencing reform now in urgent need to attention and action.

"Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"

The title of this post is the headline of this new short piece by Mark Osler now available via SSRN. Here is the abstract:

Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform. This short statement acknowledges that consensus, and lays out a framework for change. The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective. We urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.

April 15, 2013

Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston

I am listening now to the press conference concerning the latest news concerning the horrific crime that took place today, Patriots' Day, in Boston. According to the report, at 2:50pm there were simulataneous explosions resulting in casualties on the route of Boston Marathon. In addition, more than an hour later, there was some sort of (perhaps related) event at the nearby JKF Library.

What should happen after improper federal judicial participation in plea negotiations?

The question in the title of this post is the question being considered by the Supreme Court during oral argument today in US v. Davila. I have not given Davila too much attention until now, in part because I think I would prefer a world with a lot more regulation and judicial involvement in plea negotiation. Moreover, as this SCOTUSblog preview by Rory Little suggests, there may be a host of reasons it makes sense for me to be rooting about the federal criminal defendant in this matter. Here is how Rory's effectivepreview starts:

With apologies to fifty-seven of my fellow “Criminal Law and Procedure Professors” who have filed an amicus brief in support of respondent Anthony Davila in United States v. Davila
(set for argument on Monday April 15 -- can that really be a coincidence
for a felony tax offender?), this looks like a simple case.
“Deceptively simple,” Davila’s lawyer Josh Rosenkranz might respond -- his brief
does a good job of making one pause at the implications of the
underlying facts. But the Question on which the Court granted -- whether
“any degree of judicial participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1) automatically
requires” reversal (my emphasis) -- really does not require examination
of these implications. In recent years, the Court has firmly rejected
endorsing “automatic reversal” rules, let alone ones based on procedural
rules rather than the Constitution, rules that many states do not
follow. Expect Monday’s argument to be respectful but one-sided on the
Question Presented, with the more defendant-friendly Justices perhaps
focused on how best to limit a reversal so as to not endorse the
disturbing implications that Davila (and his law professor amici) admirably present.

I expect the oral argument transcript in Davila will be available later this afternoon, and I will post it here when it is.

UPDATE: The transcript in United States v. Davila is now available at this link.

The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.

As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities
at his federal sentencings and in part because of the many legal and
social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son
was given at his first sentencing and the seemingly harsh
sentence he got the second time around (some backstory here). The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on. I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.

At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:

Finally, we take note of the argument, made by Douglas and supported by amici,
that punitive sanctions are a less appropriate response to criminal acts by persons
suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011). But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.

We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences. Indeed, that is precisely how the district court approached Douglas’s original sentence in this case. Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency. District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.” We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.

And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:

I join the majority opinion in full because I agree that it is not substantively
unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to
emphasize my view that a term of imprisonment of between 5 and 10 years ought not to
be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by
an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

Interesting coverage of media coverage of crime and prison punishments

Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories. I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility."

As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States. Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."

With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:

As more states embrace legalized marijuana, the drug’s growing medicinal use has highlighted a disturbing fact for doctors: scant research exists to support marijuana’s health benefits.

Smoked, eaten or brewed as a tea, marijuana has been used as a medication for centuries, including in the U.S., where Eli Lilly & Co. (LLY) sold it until 1915. The drug was declared illegal in 1937, though its long history has provided ample anecdotal evidence of the plant’s potential medicinal use. Still, modern scientific studies are lacking.

Subsequent research suggests marijuana may help stimulate appetite in chemotherapy and AIDS patients, help improve muscle spasms in multiple sclerosis patients, mitigate nerve pain in patients with HIV-related nerve damage and reduce depression and anxiety.

What’s more, the federal government is scaling back its research funding. U.S. spending has dropped 31 percent since 2007 when it peaked at $131 million, according to a National Institutes of Health research database. Last year, 235 projects received $91 million of public funds, according to NIH data.

That’s left the medical community in a bind: current literature on the effects of medical cannabis is contradictory at best, providing little guidance for prescribing doctors. “What’s happening in the states is not related to science at all,” said Beau Kilmer, co-director of RAND Corp.’s drug policy research center. Kilmer is also part of a group selected to advise the state of Washington on its legalization effort. “It’s difficult to get good information,” he said.

Two states, Washington and Colorado, have fully legalized the drug, 18 states allow its use for medical reasons and 17, including New York, have legislation pending to legalize it.

Donald Vereen, a former adviser to the last three directors of the National Institute on Drug Abuse, says that most doctors’ and policy makers’ knowledge on the subject stems from a 1999 report from the Institute of Medicine, an independent nonprofit that serves to provide information about health science for the government. The group summed up its findings saying cannabis appeared to have benefits, though the drug’s role was unclear.

The IOM report recommended clinical trials of cannabinoid drugs for anxiety reduction, appetite stimulation, nausea reduction and pain relief. It also found that the brain develops tolerance to marijuana though the withdrawal symptoms are “mild compared to opiates and benzodiazapines.”...
Vereen, for one, says marijuana’s effects on pain without the withdrawal symptoms associated with other medications are deserving of further study to develop better pain drugs.

Subsequent research suggests marijuana may help stimulate appetite in chemotherapy and AIDS patients, help improve muscle spasms in multiple sclerosis patients, mitigate nerve pain in those with HIV-related nerve damage and reduce depression and anxiety. It’s even been suggested that an active ingredient, THC, may prevent plaques in the brain associated with Alzheimer’s, according to a 2006 study by the Scripps Research Institute.

Still, fewer than 20 randomized controlled trials, the gold standard for clinical research, involving only about 300 patients have been conducted on smoked marijuana over the last 35 years, according to the American Medical Association, the U.S.’s largest doctor group....

Until more laws change, it will be difficult to study an illegal substance with the goal of turning it into a medication, researchers say. And since it’s illegal to grow, marijuana isn’t subjected to the rigorous quality control most medicines are, raising concerns patients may be at risk from contaminants, said Vereen.

Marijuana advocates point out inherent obstacles to conducting research: the National Institute on Drug Abuse controls all the cannabis used in approved trials, but the agency’s mandate is to study abuse of drugs, not health benefits.
FDA Dilemma
This creates dilemmas. The Food and Drug Administration, for instance, has approved a clinical trial studying whether marijuana can relieve symptoms of post-traumatic stress disorder. The trial, however, which is in the second of three stages of clinical testing, is blocked. NIDA, which controls the legal testing supply of the drug grown at a University of Mississippi farm, has refused to supply the researchers with marijuana.

“NIDA is under a mandate from Congress to find problems with marijuana,” said Bob Melamede, CEO of Cannabis Science Inc. (CBIS), a Colorado Springs, Colorado-based company that develops medicines derived from marijuana. “If you want to run a study to show it cures cancer, they will not provide you with marijuana,” he said. “What you cannot do are the clinical studies that are necessary.”

Attempts to expand licensed facilities beyond the University of Mississippi farm, have been denied, including a petition from University of Massachusetts agronomist Lyle Craker. The Drug Enforcement Administration denied that request in 2011, reversing a 2007 recommendation from its own administrative law judge, Mary Ellen Bittner.

NIDA also administered the most projects from 2003 to 2012, overseeing $713 million split among 1,837 research efforts. The bulk of the funding in the past decade was devoted to evaluating marijuana’s risks, potential negative impacts on the brain and developing prevention and treatment strategies, according to NIDA.

“There’s been a significant amount of study, but not clinical research,” said Brad Burge, a spokesman for the Multidisciplinary Association for Psychedelic Studies, a non-profit research and advocacy group. What’s lacking, says Burge, is “research intended to move marijuana, the plant, through the path to prescription approval by the FDA.”

For now, the research that does exist is often contradictory. A survey of 4,400 people found that those who consumed marijuana daily or at least once a week reported less depressed mood than non-users, according to a 2005 report in the journal Addictive Behaviors. A 2010, however, study in the American Journal of Drug and Alcohol Abuse of 14,000 found that anxiety and mood disorders were more common in those who smoked almost every day or daily....

Doctors’ attitudes are also shifting in favor of easing marijuana restrictions. The American Medical Association, the nation’s biggest doctor organization has called for a review of marijuana’s Schedule I status, a designation that declares it has no accepted medical use.

The American College of Physicians, the second-largest U.S. doctor organization with 133,000 members, also wants criminal penalties waived for doctors who prescribe marijuana and patients who smoke it. The drug could be useful to treat multiple sclerosis, nausea and pain, based on preliminary studies and pre-clinical lab work, the group said in a 2008 position paper calling for more research.

April 14, 2013

Joanne Ford was a designated organ donor for decades, years before she was sentenced to time in Utah’s Draper Prison for possession and distribution of methamphetamines.
But it wasn’t until two weeks ago that the 48-year-old inmate was guaranteed the right to honor her wishes if she happened to die while incarcerated.

Utah’s governor, Gary R. Herbert, signed the first state law on March 28 that explicitly permits general prisoners to sign up for organ donation — and cracks the door to the controversial option of allowing death-row inmates to donate as well.

“I think, why not?” says Ford, who is among 247 Utah prisoners who’ve signed up to donate their organs. “If you have healthy organs, why would you not be able to help someone else?”

Whether to accept organs from prisoners has long been a thorny issue. Ethics experts say it pits questions of coercion of a vulnerable population against the desperate need for organs in a country where nearly 118,000 people are waiting for hearts, kidneys, livers and other life-saving transplants, according to the United Network for Organ Sharing.

In most states, accepting organs from inmates who die while in custody is permitted only rarely and under strictly controlled circumstances. No state allows donation of organs from executed prisoners....

Utah state Rep. Steve Eliason, who pushed the law through the legislature, said he was inspired by the 2010 death of Ronnie Lee Gardner, a murderer who wanted to donate his organs but was prohibited from doing so.
“How disappointing is that, there’s somebody who maybe wants to atone for his sins in some way,” says the Republican from Sandy, Utah. “It’s a waste of perfectly good organs that could help others.”

Eliason first proposed a bill allowing prisoners to donate organs last year, but time ran out before it could be fully considered. The next time, it passed unanimously....

Now that the law has passed, records of inmates who want to donate have been sent to Intermountain Donor Services, the agency that manages organ donations in Utah. They’ve been added to the state donor registry. “Any time we can expand the donor pool or make people aware of organ donation, we’re supportive of that,” says Alex McDonald, a spokesman....

[E]very organ donor can save the lives of up to eight people and tissue donors can help more than 50 people, transplant experts say.... The Utah law does not discriminate between general population prisoners and death-row inmates, Eliason noted. “Any prisoner is able to do this,” he says....

Some may wonder whether people in need would accept organs from prisoners, but Lori Haglund of Salt Lake City says there’s no question. Her son, Brock Butler, had a progressive liver disease. He died in September, a week before his 21st birthday, after spending three years on a waiting list for a liver.
“We were acutely aware of what we were asking someone to be giving,” says Haglund, 51. “For anyone who would be willing, it gives them a chance to give something back.”

Joanne Ford agrees. Although she may have damaged her organs, particularly her liver, with drug use, she still hopes she may one day help others.
“There still may be one or two things that could still possibly be used,” she says.
Donating her organs after death would be one way to atone for her actions — in addition to prison time.
“I feel like I owe society a big debt,” she says. “I caused a great damage out there. I feel good about this.”

Weekend crime and punishment headlines from California

California has a large enough population to be a large nation all its own, and some crime and punishment stories that swirl around the state these days reveals just some of the ways that the Golden State is truly a unique jurisdiction. Here are just some of the headline from the state which caught my eye this weekend:

The drug kingpin is a familiar figure in movies and televisions shows about the drug trade. And in the movies, the kingpin is usually easy enough to describe. The kingpin is the cold, calculating head of a criminal enterprise, making large amounts and using force to maintain his or her power. In the law, however, kingpins are much harder to identify. This theme comes up in a few different parts of my casebook.

As a matter of legislative drafting, defining drug kingpins presents a few difficult challenges. I highlight the issues with a pair of cases: United States v. Witek, 61 F.3d 819 (11th Cir. 1995) and New Jersey v. Alexander, 136 N.J. 563 (1994).

Witek concerns the federal “continuing criminal enterprise (CCE)” offense. Created by Congress in 1970 as part of the Controlled Substances Act, CCE requires the defendant engage in a “continuing series” of federal drug crimes “which are undertaken . . . in concert with five or more other persons with respect to whom [the defendant] occupies a position of organizer, a supervisory position, or any other position of management and from which [the defendant] obtains substantial income or resources.” 21 U.S.C. § 848. In Witek, the Court overturns the defendant’s CCE conviction, finding he only supervised two people within the meaning of the statute, not five.

In Alexander, we see a different approach to identifying drug kingpins. The New Jersey law at issue provided for a 25 year-to-life sentence for anyone who was “a leader of a narcotics trafficking network.” But leader was defined quite broadly, as conspiring “with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport” a controlled substance in New Jersey. In Alexander, the New Jersey Supreme Court tries to reconcile the legislature’s stated purpose of targeting drug kingpins with language that would seem to apply to people much much lower on the totem poll. Ultimately, the Court engrafts an additional requirement onto the law — that the government prove the defendant was an “upper echelon” leader, superior to street level distributors—over a vigorous dissent.

Together, the cases reveal a couple of different problems when it comes to kingpins. First, trying to translate our image of a “kingpin” into legislation is no easy task. The federal CCE statute is pretty specific, but even this law might be criticized as sweeping too broadly. Indeed, courts have held that a “defendant need not be the dominant organizer or manager of a criminal enterprise; the statute only requires that he occupy some managerial position.” US v. Becton, 751 F.2d 250 (8th Cir. 1984). Yet, at the same time, it may not reach broadly enough. Drug kingpins may try to insulate themselves by dealing with only a few people directly and keeping others at arms-length. Arguably, this is what results in the reversal in Witek: the defendant was found not to have supervised street-level dealers with whom he had only a buyer-seller relationship.

New Jersey lawmakers tried a more flexible approach than CCE but wound up with a law that even the Alexander dissent acknowledged was much broader than its stated purpose. Moreover, the majority’s “upper echelon” fix is not a model of clarity. The Court defines an “upper echelon” drug leaders as “one who occupies a significant or important position in the organization and exercises substantial authority and control over its operations.” Is it possible to discern what evidence a prosecutor would need to put on to meet this test?

The second key challenge is that, to the extent “drug kingpin” can be precisely defined, the result will inevitably be a crime that is very difficult to prove — not just in terms of collecting the evidence but putting on the case. Proving that someone was a manager or supervisor of five people is a potentially time consuming proposition. This may be one reason that CCE is rarely prosecuted: of the 22,911 defendants sentenced for a federal drug offense in 2009, only 22 were convicted of CCE.

Another reason may be that CCE does not provide the enforcement value today that it once might have. When Congressed passed the Controlled Substances Act, CCE was alone in providing for a stiff mandatory minimum sentence upon conviction. Today, of course, federal drug laws are replete with mandatory minimums.

Indeed, in Witek, the defendant appears to emerge victorious, with his CCE conviction overturned. What did this “win” mean in practical terms? Not much at all. The guy still ends up with a life sentence based on his conspiracy conviction. In a footnote at the end of the decision, the Court explains: “As we affirm [the defendant’s] other convictions, the only collateral consequence of vacating his CCE conviction is eliminating the $250 special assessment imposed for that count.”

The question of drug kingpins arises in other settings in the book as well. The high cost of wiretaps, for example, may be another barrier to kingpin prosecutions. Drug sentencing laws arguably give a perverse incentive to use upper-level players to catch more small fries, rather than the way around.

Together, the materials show why we haven’t been able to “win” the drug war by “taking out the kingpins.” Defining, locating, and prosecuting drug kingpins is much easier said than done.